V-
MINORITY REPORT
mjMVaU W *tv jR". ft' *
WAiHIIVSICN, 0. C
OF THE
£•
Committee m §lailtoap atrir Canals,
IN RELATION TO
RAILROAD COMMISSIONERS
March 3 7, I8 6 0
E
Tl
BOSTON:
WILLIAM WHITE, PRINTER TO THE STATE.
1 8 6 0.
HOUSE....No. 211.
€ommcmtuealtl) of illassadjusctts.
MINORITY REPORT'
Of the Committee on Railways and Canals, on the Order of February 19 th,
1860, introduced by Mr. Shaw, of Boston, on the subject of the expe¬
diency of further legislation in relation to the Powers of Commissioners,
appointed under the laws relating to connecting railroads.
The undersigned, chairman of the Committee on Railways and
Canals, to whom was referred the Order above mentioned,
differing very materially with his colleagues of the Commit¬
tee as to the expediency of further legislation upon the sub¬
ject, covered by said Order, desires respectfully to
REPORT:
The foregoing Order was adopted on the motion of one of the
Directors of the Western Railroad, and was offered, unques¬
tionably with particular reference to the relations existing
between the Boston and Worcester, and the Western Railroad
Corporations, and more especially to an award touching certain
matters in controversy between said two corporations, accept¬
ed by the Justices of the Supreme Court at the law term in
Boston, in November, 1859. The undersigned thinks proper
to refer to the opinion of the court: showing, at some length,
HE^rii
M+
2
IZkO
RAILROAD COMMISSIONERS. [March,
tliat tlie general principle upon which the commissioners pro¬
ceeded was the true principle, and that the basis thereof was
eminently reasonable.
Under these circumstances, the Committee gave notice to said
corporations ; and their respective presidents and counsel duly
appeared before them. In the year 1857, both of said corpora¬
tions severally presented their petitions to the said court, alleg¬
ing, with more or less particularity, in substance, that the rail¬
roads of the two corporations were so united that each of them
was bound to draw over its road the passengers, merchandise,
and cars of the other for a reasonable compensation, to be paid
therefor; that the parties had been unable to agree with each
other in relation thereto, and thereupon praying that commis¬
sioners might be appointed to determine and fix the rate of said
compensation, and for the use of depot accommodations,
including the receipt and delivery of passengers and merchan¬
dise, and the apportioning the cost and expenses of the business?
in which said corporations were jointly interested ; and the just
and equitable division between said corporations of the receipts
of such joint business, pursuant to the Acts of 1815 and 1857>
relating to the subject; that after due and proper notice had
been given, and due proceedings had, commissioners, nominated
and agreed upon by the parties, were appointed to hear and
determine all questions at issue between the parties, which were
set forth in their respective petitions; and which, commissioners
appointed under the provisions of the said statutes of 1845,
chapter 191, — and of 1857, chapter 291, were by virtue thereof
authorized to hear and determine : that the said commissioners
afterwards heard the parties and made their award in the prem¬
ises, and returned the same into said court, where it was opened
and filed on the 24th of March, 1858, and the same was after¬
wards affirmed and accepted after a full hearing as aforesaid.
There being several minor questions, which had given rise to
some discussion between said parties, they were all submitted
to said commissioners, acting as referees, mutually agreed upon
to settle all such matters of difference. As the award of the
commissioners had not proven satisfactory to the government
of the Western Railroad, and as the Committee were unable to
decide how far it was expedient, if at all, further to legislate
upon the subject, without being made acquainted with the basis
■ ■ ■>' "\ ' T A , • '*• , ■- ,■ A .
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I860.] HOUSE—No. 211. 3
of action adopted by said commissioners, — they thought it
proper to summon them (the said commissioners) to appear
before them. Accordingly the said commissioners, viz., John
W. Brooks, president of the Michigan Central Railroad, Waldo
Higginson, formerly superintendent of the Boston and Lowell
Railroad, and Isaac Hinckley, a gentleman of large experience
in railroad matters appeared in answer to the summons ; and
Mr. Brooks, the chairman of the Board of Commissioners, was
fully examined, and testified at length before the committee.
He gave a particular and minute statement of the course
pursued by the commissioners, of the thoroughness of the hear¬
ings, of the full scope given to both presidents and to their
counsel. He made a perfect exposition of the facts, proved
before them, and of the careful consideration they gave to
every matter affecting the joint business of the two roads, and
to the respective interests of the parties in relation to whatever
concerned their large stations and their small stations.
He testified that the commissioners applied all the knowl¬
edge and experience they possessed to make a just and equitable
division of the joint receipts, and took special pains to consider
and weigh every suggestion made by the parties respectively,
touching every point, and to make to each party all due allow¬
ances for any extra labor, cost, difficulty, or other peculiar
circumstances, applicable to any particular business, or to any
station on either road. Mr. Brooks's testimony was a clear,
lucid and perfect statement of all facts and considerations
applicable to the whole subject; and after he had made his
exposition and statement in chief, he was pointedly interrogated
by the counsel of the parties, particularly by the president and
counsel of the Western Company.
His answers were prompt and complete in every instance,
showing that he was a perfect master of the whole subject, and
was entirely familiar with every fact, and circumstance and
principle touching every point in the case.
Mr. Brooks assured the Committee that he and his associates
on the commission had spared no pains to make a just award,
and all his reflections since had confirmed him in the opinion
that their decision was correct and right.
The other commissioners were then called on, and they both
stated that they had heard with care and attention Mr. Brooks's
4
RAILROAD COMMISSIONERS. [March,
testimony and statement, and they fully concurred with him in
all that he had testified and said, and that they had nothing
further to add by way of explanation or qualification. There¬
upon the Committee did not deem it worth while to require
them to go over the same ground, and to state again what Mr.
Brooks had so fully explained ; and they were excused from
any further attendance.
After this testimony of the commissioners had been given,
the President of the Western Railroad proceeded to state his
objections to said award, and presented an array of figures and
statistics which he explained with much fulness. His state¬
ments and testimony were given at much length. His object was
to show that the joint receipts should be divided, or rather that
each party should receive a certain reasonable compensation
for its share of labor in carrying on and transacting the joint
business, according to a certain fixed rule to be prescribed by
the legislature.
The President of the Worcester Company then gave his tes¬
timony and proceeded to make a statement at somewhat greater
length than the gentleman who preceded him. He also pre¬
sented a mass of facts and of figures and statistics on his part.
His object was to show that said award was not only not unjust
to the Western road, but was more favorable to that corpora¬
tion than it ought to have been, and also to prove that it would
be fatal to the best interests of both said two great roads to
have such an unbending and fixed rule adopted as was proposed.
He insisted that the great purpose of the legislature had been
to secure the appointment of able, experienced and practical
men for commissioners, and then to leave it to such men as
commissioners to prescribe such a rule for the division of the
joint receipts as would be applicable to the character of the
roads and the relations of the parties before them, and would
secure such a division as would be just and reasonable between
the parties.
The undersigned, in order that this report may be better
understood, deems it proper in this place to refer to the fol¬
lowing facts, which occurred in the history of the two corpora¬
tions, to wit:—
Some time after the passage of the said Act of 1845, the two
corporations being unable to agree as to a division of the joint
I860.]
HOUSE—No. 211.
5
receipts, the Western Railroad Corporation presented a petition
to the justices of the supreme judicial court, praying the said
court to appoint commissioners under said Act. But while
said petition was pending, an important change occurred in the
direction of the Western Railroad, and several new directors
were elected, amongst whom was Addison Gilmore, Esq., who was
chosen president of the corporation. Mr. Gilmore had for a long
time taken a deep interest in railroad matters, ami had for four
successive years been a very active, efficient and popular director
of the Boston and Worcester Road, and was fully acquainted
with its affairs and with the relations existing between that road
and the Western Road. He had, as such director, taken a very
active part in purchasing the land in Boston for the great
merchandise depot, and in the construction by the Worcester
Company of the capacious depot-building for the accommoda¬
tion of the business connected with the Western Road, and in
making other important preparations for carrying on the largely
increased traffic expected from said road.
Mr. Gilmore became director and president of the Western
Road in February, 1846, and in a very few days he and the
Hon. Nathan Hale, president of the Worcester Company, settled
all the questions existing between the two corporations, and
said petition of the Western Railroad for the appointment of
commissioners, and another petition of that corporation, then
pending before the legislature, praying for additional legislation,
were both at once withdrawn by Mr. Gilmore, and a most
important contract was executed by said two presidents, regu¬
lating their joint business, and providing for such a division of
joint receipts predicated on the great pro rata principle, with
such proper exceptions and local allowances as were deemed
just and reasonable, and applicable to the relative condition of
things and amount of business at that period. Said contract
was dated February 17, 1846, and was made to commence on
the first of December, 1845, and said contract was continued in
force till June 1,1856—a period of ten years and a half—with
certain modifications, some made to take effect from June 1,
1849, and others to take effect from June 1,1852, in accordance
with the spirit and intent of the declaration of principles con¬
tained in the original instrument.
6
RAILROAD COMMISSIONERS. [March,
This important contract, with its modifications, is often
quoted, and is referred to by the president of the Western Road
as being the work of men who had " intimate acquaintance of
the working and practical knowledge of the two roadsand
the Worcester Company has declared its willingness, and at all
times in its reports and otherwise, insisted on its desire to stand
on the principles of that contract, and of its said modifications.
The counsel of said company presented said contract and its
modifications to the Committee, and also a full copy thereof.
This contract seems to be regarded as the great chart to
which reference is very properly made in all discussions between
the two corporations, and the undersigned deems it an instru¬
ment of so great importance that he has annexed said copy to
this report for the convenience and information of members of
the legislature, and commends the same and also a comparison
thereof and of its results with said award and its results, to
their particular attention.
The undersigned will now proceed to an examination and
consideration of the said award of the commissioners, and to
compare its results with those of said contract of 1846.
Under the award, the Western Railroad, on every class of
freight, is to have an excess over a pro rata share at thirty
out of the thirty-five stations between Albany and Worcester,
while the Worcester Company is to have such an excess at the
remaining five stations only. By reason of this discrimination,
the Western Road are gainers by the award over the contract
of several thousand dollars. For by the contract, during the
last four years and a half of its existence, the receipts for freight
were divided by an exact pro rata rule between the two corpo¬
rations.
As to the discriminations from, or exceptions to, a perfect
pro rata division of receipts for passengers, the undersigned
finds that by virtue of said award, the Western Road is to
receive of the receipts for the first class of passengers an excess
over a pro rata share at every one of the thirty-five stations
between Worcester and Albany, and an excess over pro rata of
the receipts for the second class passengers at thirty-one of
-said stations, and the Worcester Company such excess at the
remaining four stations only. By this discrimination the
Western Company receive by such excess over a pro rata share
I860.] HOUSE—No. 211. 7
of receipts for passengers a considerable sum, amounting to
several thousand dollars per annum; but the discrimination
being somewhat less than under said contract, the Worcester
Road are gainers by the award on passengers over the contract
of some thousands of dollars per annum. It is impossible for
the undersigned to determine what the precise result is, but it
seemed to be admitted in the discussions of the presidents that
the Worcester Company had not gained by the award on pas¬
sengers more than they had lost on merchandise, if they had so
much. The undersigned was entirely satisfied that the result
of the award and of the contract was just about the same.
The chairman of the commissioners testified that the extra
allowances made to the Western Road by the award were simi¬
lar in character to those made to said road by the contract of
1846.
This examination and comparison of the award with the said
contract, and the very close approximation of the result of the
award to the result of the contract, especially during the last four
and a half years of its existence, led the undersigned to a careful
consideration of the general and particular effect of said contract
upon the prosperity and success of said two railroads. On this
review of said contract and its effects, it appeared that during
the whole period of its existence, this great railroad line from
Boston to Albany was not only excellently well managed, but
the productiveness and prosperity of both roads was of the most
encouraging character, and they both paid good dividends,
especially the Western Railroad. From the day that said con¬
tract was signed by Nathan Hale and Addison Gilmore, the
condition of the Western Railroad was that of remarkable and
unexpected prosperity, and paid very satisfactory dividends
during the whole time to its stockholders. For nearly the
whole of said period, said railroad paid regularly eight per
cent, per annum to its stockholders on their investment, being
four per cent, semi-annually ; and in addition thereto for sev¬
eral years of said period, (that is, after a very timely and wise
requisition of the legislature* on the subject was adopted,) said
* The State is indebted to the foresight of the Hon. Tappan Wentworth for
this very important enactment in relation to the sinking fund, which he urged
with much ability and carried in the Senate against an earnest opposition.
I
8 RAILROAD COMMISSIONERS. [March,
>
road paid one per cent, to the sinking fund, established to
secure the payment of its debt, which payment will leave the
capital of said road very small, compared with the magnitude
of this magnificent work. Thus the Western Road during this
period of ten years, including the last four years thereof and
upwards, and down to the present time has on the whole paid
larger dividends than the Boston and Worcester Road. This
is a case of remarkable success, especially for an interior road,
commencing forty-four miles from Boston and extending into
the country one hundred and fifty-six miles. This great result,
very far beyond what any person, however sanguine, could have
ventured to predict at any time prior to the date of said con¬
tract in 1846, has given entire satisfaction to the stockholders
of said road, to the legislature, and to the people of the Com¬
monwealth.
Such being the result of said contract, was it the dictate of
wisdom 011 the part of the Worcester Road or of the Western
Road to take measures to terminate said contract ? The under¬
signed thinks it was injudicious for the Worcester Road to
decide in favor of such termination. The consequence has
been that said railroad gained nothing by the course taken, as
has already been shown, and the undersigned regards the
course of the Western Road, in deciding to terminate said con¬
tract, made a serious mistake. The result shows that both
parties had much better have let well enovgh alone, and that
what happened in this case was in accordance with universal
experience when parties go to law. It is to be hoped that both
corporations will learn by this result that each will always
suffer more by making applications to the judicial tribunals or
to the legislature, than they will be likely to gain; and that the
presidents of both corporations had better devote their whole
time and all their thoughts to the careful and efficient manage¬
ment of their roads than to employ themselves in collecting
statistics, bringing together great masses of figures, and prepar¬
ing what are called long statements of facts, and with those
statistics, figures and statements to spend days and weeks
before committees, commissioners, or courts.
The undersigned has not ventured, with his knowledge and
experience in relation to railroad matters, to express an opinion
that said award was perfectly just and correct, but the
I860.]
HOUSE—No. 211.
9
undersigned is constrained to say that the Western Railroad
has failed to prove it to be wrong, and the undersigned thinks
that that corporation ought to have established that fact before
it could be considered as having advanced one step in its appli¬
cation for any action 011 the part of the legislature.
The inference which the undersigned draws from the fore¬
going comparison of the effect and result of said award with
the effect and result of said contract is, that said award cannot
be practically wrong, certainly not to an extent deserving of
any consideration. For if the effect and result of the award is
the same, or very nearly the same, as was the effect and result
of said contract, under which the Western Road enjoyed a
remarkable course of prosperity, and paid its stockholders all
they desired, and much more than they had expected—it would
seem that no exigency presents itself for any legislative inter¬
position—and least of all, such legislation as is asked for.
Besides, if the Western Road are so satisfied that said award is
wrong and unjust, and that the best interests of the Western
Road demand an effort to have the same reviewed and cor¬
rected, let said corporation resort to the appropriate remedy,
which the said Acts of 1845 and 1857 now give them. Let
them, in conformity with the provisions of said laws, apply to
the Court for a new Board of Commissioners. It seems in fact
that they have made such an application, and their petition is
now pending before the judicial tribunal. The Western Com¬
pany of course expect on the hearing of their said petition to
have new commissioners, (whether selected by the parties or
appointed by the court,) who shall be able and experienced
men, perfectly conversant with railroad matters and the merits
of all questions touching the relations existing between con¬
necting railroads, especially such as those of the Western and
Worcester Corporations, that is, such men as will make a just
and perfect award, one which shall be beneficial to the best
interest of their road,—otherwise said Western Road would
not have asked for the appointment of such commissioners. Is
it then wise or expedient that such new commissioners should
be trammelled with the arbitrary and unbending rule which is
contained in the Bill proposed ? If such a rule of division of
the joint receipts or compensation to each road for its share of
labor and expense in doing the joint business of said roads is
2
10 RAILROAD COMMISSIONERS. [March,
expedient and for their best interests, the new commissioners
will apply it,—but if they, being able and experienced railroad
men, shall, after long and diligent inquiry, find that such a
rule will operate most injuriously to such a road as the Western
Road, connected as it is with the Worcester Road, and consti¬
tuting such a great and important continuous line from the
capital of Massachusetts to the capital of the State of New
York, then such commissioners will not apply it, and it will be
all important that they should not be compelled by a rigid
enactment to do so.
The proper rule for dividing the joint receipts, and particu¬
larly for testing the equality of the award, was a subject of
dispute between the two corporations before the Committee.
The Worcester Road claimed that each party should receive its
proportion of the receipts on each class of freight to each
station, according to the work done in each case, and this rule
it appeared had been adopted in prior contracts, while the
Western Road claimed that all the receipts on the freight busi¬
ness (for it appeared that they did not desire to apply this rule
to passengers,) should be divided according to the number of
tons carried one mile by each, without regard to quality or
price, to be ascertained by multiplying the tons to each station
by the number of miles carried, and adding these products
together. At first sight these two rules may seem equivalent,
but their result is widely different, so that each party claimed
that the award gave to the other a large excess over its just
proportion. The chairman of the commissioners stated that
these tests and their result were carefully considered with the
light of experience, and the latter rule was rejected by the
commissioners, because they were satisfied that its operation
was unjust; and the table to be found at the close of this Report
was used by the chairman to illustrate its results and to show
that the effect must be to induce one corporation to discourage
carrying a large class of freight, and to compel it to carry that
class in fact without compensation. The chairman also stated
that they had considered the propriety of fixing an uniform
rate for all freight, but rejected that also, because they thought
its results would be prejudicial to both parties. This he illus¬
trated in the following manner. The rates of freight vary
from 3| to 1J cents per ton per mile. If an average rate of
I860.]
HOUSE—No. 211.
11
2-|- cents (and an average would naturally be selected) per
mile was fixed, the Worcester Road would then charge, as by
the present joint tariff, $7 on a ton to Albany, for which it
would pay the Western Road for 156 miles, $3.90, and receive
for itself $3.10, or more than it now charges, while on the low
freight it would charge the freighter $3 to Albany, but must
pay to the Western Road $3.90, that is, carry it for nothing,
and pay 90 cents besides, and this 90 cents taken from the
$3.10 in the first instance, would leave only $2.20 for the
whole service in both cases. So on local freight the Western
Road receiving $4.20 from Clappville, nine miles from Worces
ter, would pay over $1.10 to the Worcester Road and receive
$3.10 for nine miles of transport. Of course one road would
then gain by enhancing the price and diminishing the quantity
of freight, the other by the reverse; so that each would become
hostile to the other, and both would discourage certain classes
of trade, and one road would be made odious by reason of the
unequal share it received with reference to the business at one
station, and the other would be made odious for its share at
another station.
An equitable division on each station seemed, therefore,
clearly preferable to a rate fixed without regard to the point
from which it started, since such a division gives an equal
share of profits and losses to each road and prompts them to
encourage trade.
The system called " the number of tons carried one mile
theory" was much urged by the president of the Western Road
before the committee. This theory lies at the foundation of all
his statements and calculations, and also of those of the direc¬
tors of the Western Road, who have adopted the president's
peculiar views on this subject. This accounts for the state¬
ments, which have been published, in which it is insisted that
the Western Road has been deprived by the award of a certain
large sum of money.
Under these circumstances the undersigned cannot bring
himself to believe that it is expedient to report, or pass the
proposed Bill, or any Bill of a like kind, or to have any new
legislation on the subject at this time. He believes that the
legislation touching the matter is now ample and perfect—such
is believed to be the opinion of all judicious railroad men. In
12
RAILROAD COMMISSIONERS. [March,
fact, it was hardly alleged at the hearing, that any complaint
could be made against the laws, or against the men who acted
as commissioners, (for the Western Company have uniformly
spoken of them as gentlemen of the highest intelligence and
integrity,) but the complaint is that their decision was not a
practical one.
These railroad corporations often have verdicts against them
for large sums, and also decisions of the courts in impor¬
tant matters, of which they make grievous complaints, but the
undersigned has never known an application to the legislature
to pass a law prescribing a rule, by which juries should, under
all circumstances in similar cases, be governed and controlled
in making up the amounts of their verdicts, or by which the
courts should be trammelled and hampered in deciding similar
questions.
The undersigned, therefore, is brought to the conclusion that
no new legislation is necessary or expedient in consequence of
any thing that has been shown by the Western Railroad.
1st. Because said Western Corporation, on which is the bur¬
den of proof, has not proved that the award, which is the origin
and ground of their application, is clearly erroneous, or unjust,
and the undersigned cannot suppose that the majority of this
Committee has, either in form or in fact, come to any conclu¬
sion or result, that said award is incorrect or wrong, and the
undersigned believes that this was the first step for said corpo¬
ration to take, and to make it out to the entire satisfaction of
the Committee, before any measure of new legislation could be
recommended or seriously thought of.
2d. Because, if such award had been shown to be erroneous
or unjust, yet if the error or injustice is comparatively small,
or even if it had clearly appeared that a gross and grievous
mistake had been made by the commissioners, still it is of very
short duration, and in the judgment of the undersigned, the
proper remedy is the one provided in the Act aforesaid of 1845,
to which the Western Road has already resorted, and their
petition for new commissioners is already pending before the
appropriate judicial tribunal.
3d. Because the undersigned verily believes that the unbend¬
ing abstract rule, contained in the proposed Bill, is contrary to
the railroad policy now in practice in relation and applicable to
I860.]
HOUSE—No. 211
18
all the great railroads, which constitute the great continuous
lines, extending from Massachusetts to the Mississippi River.
4tli. Because the undersigned is apprehensive, and has great
reason to believe that said new and fixed rule will prove exceed¬
ingly injurious to the Western Road, as well as to the Worcester
Road, both constituting the great line from Boston to Albany.
5th. Because he considers it a most hazardous and dangerous
experiment to try a new rule when an entirely different one is
recognized and approved by judicious railroad men as applicable
to two such great connecting roads, and that, too, when such
different rule was adopted in 1846 by two of the wisest and
most experienced railroad men in this Commonwealth, and was
continued and practised upon for ten years, with eminent
success and benefit to the Western Road, its stockholders, the
public, and the people of the whole Commonwealth.
6th. Because said fixed? rule, as provided for in said proposed
Bill, must be enforced by the commissioners, appointed under
said petition of the Western Railroad now pending, and by all
commissioners hereafter appointed, although said commissioners
under said petition, or otherwise, shall find on a full and
thorough examination of the case presented, that the enforce¬
ment of such rule will operate with great inconvenience and
most injuriously to the best interest and good management of
the Western Road and also of the Worcester Road, and produce
great dissatisfaction everywhere, and in every respect.
7th. Because it is a thing greatly to be deprecated that a
rule should now be changed, which has worked so well, and the
excellence of which has been so fully tested and demonstrated
from the beginning, and the results of which are the same
to-day under the award, as they have been for a long series of
years of prosperity under the agreements and contracts of the
parties.
8th. Because there is very great danger that the proposed
abstract rule will be ruinous to one road and not beneficial to
the other, and at any rate that it will be exceedingly prejudicial
to this great and important line, taken as a whole.
9th. Because said proposed Bill will be a case of the most
special and partial legislation, and the said Bill, if passed, will
be adopted at the instance of a single corporation for its own
special benefit.
14
RAILROAD COMMISSIONERS. [March,
10th. Because said proposed Bill, being in the form of a
general law, will operate upon the whole railroad system in the
Commonwealth, and may prejudice the rights and interests of
all other railroad corporations, although they have not been
heard or notified.
lltli. Because the undersigned believes that, before any such
all-important measure, affecting great interests, shall be adopted
at the instance of the Western Railroad, that corporation should
at any rate prepare a special petition to the legislature, and
cause the same to be published in the newspapers a proper time
before the commencement of the session, thereby giving notice
to all railroad corporations and other parties, having any
interest in the matter, to appear and show cause why such
measure should not be adopted.
12th. Because this subject has been brought forward sud¬
denly and unexpectedly at the heel-of the session, at the in¬
stance of one party or corporation, so that there is not time to
mature, discuss, and adopt any measure by virtue of the order
of inquiry, referred to the Committee on Railways and Canals,
without danger of making some great and serious mistake, and
inflicting much injury upon other corporations and parties.
The Committee have been wholly unable to examine and look
over the great mass of papers and statements presented to them,
and to compare the statements and calculations of one party
with those of the other party, or to verify the calculations, com¬
posed of a vast array of figures; all which in the judgment of
the undersigned should be done before any committee could
safely take such a step as to report a Bill, especially one of a
novel and experimental character as applicable to two such
connecting roads as the Worcester and the Western.
13th. Because the Act last mentioned in the order of inquiry
referred to the Committee on Railways and Canals, was passed
in the year 1857, and the same, having originated in a move¬
ment on the part of the Western Railroad, has ever since been
considered by all railroad corporations as perfecting the legis¬
lation on the subject, and as providing an easy and convenient
remedy by which able, competent and experienced commission¬
ers should be appointed by the supreme court, and the most
satisfactory feature of which Act, taken in connection with the
Act of 1845, is that it gives to such competent commissioners
I860.]
HOUSE—No. 211.
15
full powers to decide all questions that might arise between
two connecting roads.
14th. Because after the commissioners appointed to revise the
laws of the State had reported, a large committee of both branch¬
es and then the whole legislature, were in session for the great
part of the last year, and they seemed, as well as the commis¬
sioners, to consider the laws of 1845 and 185T as completing
all requisite legislation on the subject; and while every portion
of existing 'legislation was scrutinized and scanned, and very
many and important alterations and modifications were made
in other portions of the great code of laws, no change of the
Acts of 1845 and 185T were made, the legislation on the subject
of said two Acts being treated as perfect by the commissioners,
by the said large committee and the sub-committees, and the
legislature and every member thereof; and now under such
circumstances, before said new code is published with an index,
the legislature is called on at the instance of one corporation,
during the last days of the session and in the hurry of the
closing scenes, to make a great and serious change in the legis¬
lation touching one of the great and most important interests
of the Commonwealth, and that too not only without any appli¬
cation from any other corporation, but contrary to what was
testified to by the experienced President of the Old Colony and
Fall Biver Railroad to be his opinion, and contrary to what is
believed to be the judgment and wishes of all experienced and
judicious railroad men. Farther, it should be borne in mind
that all new legislation, especially on important matters at this
time, before the revised code should be published, was at the
commencement of the session deprecated in every quarter.
15th. Because under the circumstances, the undersigned
considers the passage of any bill on the subject aforesaid, as
legislation upon a matter and question, now pending before a
judicial tribunal, and that the highest of the Commonwealth,
which objection to any action by the legislature is always
regarded as imperative and conclusive.
The undersigned considering the vast importance of the sub¬
ject, has by great effort and with much labor prepared the fore¬
going long Minority Report, in order to show to every member
of both branches all the numerous and grave objections, which
in his judgment exist to passing the present Bill, reported by
16 RAILROAD COMMISSIONERS. [March,
the Committee. He regrets that this Minority Report is so long
and so imperfect. This could not be avoided in dealing under
the circumstances with a subject so extensive, so multifarious
and complex. The undersigned has not had time to condense
it, or to make it shorter, or more perfect. But such as it is, he
feels it his duty to present.
In conclusion, then, the undersigned, instead of reporting, as
he at first contemplated, that it is inexpedient to legislate on
the Order aforesaid, referred to this Committee, has concluded
to recommend that the whole subject be referred to the next
legislature, being desirous that the whole matter should be
. discussed and considered more fully, — and, under more favor¬
able circumstances, when the whole railroad interest shall be
duly notified. The undersigned, therefore, reports on his part,
that the further consideration of said Order be referred to the
next general court.
GEORGE ODIORNE.
I860.]
HOUSE—No. 211.
17
TABLE.
BOSTON AND WORCESTER.
lOO Tons.
Miles.
Rate per Ton
per Mile.
Amount Re¬
ceived.
Tons one Mile.
1.
44 miles on Boston
Worcester,
and
•
44
.06
$264 00
4,400
2.
44 miles on Boston
Worcester,
and
44
.02
88 00
4,400
$352 00
WESTERN.
1.
9 miles on Western, .
•
9
.06
$54 00
900
2.
120 miles on Western,
•
120
.02
240 00
12,000
$294 00
Total and Average.
—
02.977
$646 00
—
Boston and Worcester,
• •
• •
261 97
21,700
Western,
384 03
—
Thus, by the plan proposed by the Western Railroad President, the Boston
and Worcester Railroad would receive, for carrying the 200 tons of freight 44
miles, $261.97; while their pro rata share, on each hundred tons separately,
would amount to $264 on the first 100 tons, and $88 on the last, making in
all, $352 ; and, therefore, they would carry the last 100 tons for nothing, and
the first 100 tons for $2.03 less than their pro rata share on this one lot of
freight.
3
18
RAILROAD COMMISSIONERS. [March,
This Agreement, entered into by and between the Boston and Worcester
and the Western Railroad Corporations, for regulating the division
between them, on equitable terms, of the income derived from the
joint business of their two railroads,
WITNESSETH,
1st. That in consideration of the higher relative cost of the Western
Railroad, as well as of the expense of transportation upon it, in pro¬
portion to the amount of its business, it is agreed between the parties
aforesaid, that the said Western Corporation shall receive a larger pro¬
portion of the fare from joint passengers than pro rata division per
mile, as follows, viz.:—
Provided, the said Western Railroad shall so reduce its fare on the
through passengers, that the rate from Boston to Albany shall be $5,
the full proportion of which for the 44 miles of the Worcester Road
would be $1.10, it is agreed that 10 cents shall be deducted from the
said proportion, and added to the proportion of the Western Road, so
that the said Worcester Company shall receive $1 and the Western
Road $4 of the said through fare; and the mode of collecting said
through fares, as well as the joint way fares, shall be the same as has
been practiced heretofore, by the sale of the tickets of the- several roads
by the agents of each, at their respective local rates, and dividing and
accounting for the proceeds in the manner herein provided for. Second
class passengers are to be charged at two-thirds the rates of those of
the first class, and the proceeds in all cases to be accounted for in the
same proportions.
2d. In case it shall become necessary or expedient for encouraging
the through travel, to establish an extra through train to run at lower
rates of fare than those above stipulated to be established by mutual
agreement, the parties hereto engage to consent to the same, and the
proceeds of the fare so established, shall be divided on the same princi¬
ple of deducting 10 cents from the pro rata share of the Boston and
Worcester Road, and adding it to that of the Western. Such way pas¬
sengers as may be carried in the said extra trains shall pay the regular
rates of fare, unless a different rate shall be established by mutual
consent.
3d. The Boston and Worcester Corporation agrees that the Western
Corporation shall be permitted to charge the joint passengers going to
I860.]
HOUSE—No. 211.
19
or from the way stations on their road, at a higher rate than the above,
but not exceeding 3 cents a mile; and that they will claim on this
account no more than $1 for the whole length of their road, and in the
same proportion for parts of it.
4th. Should the Western Corporation deem it expedient during the
winter season, and while the navigation between Albany and New York
is closed by ice, to raise the through fare to $5.50, they are hereby
authorized so to do, and the Boston and Worcester Road will not on
account thereof be entitled to any increase of their portion of said fare.
5th. The Boston and Worcester Corporation shall pay to the Western
Corporation a reasonable compensation, to be agreed on between them,
for the use of passenger cars, proportioned to the amount and distance of
the joint transportation on their road, so long as the said cars are furn¬
ished by the latter corporation, but the Worcester Corporation shall be
authorized to furnish its proportion of passengers cars, at their own
charge, in case they shall prefer it to the present arrangement.
6th. The Worcester Corporation agrees, in consideration that the
Western Corporation will furnish a baggage and post-office car and bag¬
gage crates, to permit an express and his messengers to pass in said
trains, with liberty to carry a reasonable amount of express matter, it
being understood that the said express agents are not to be authorized to
do any business except for customers on, or connected with the Western
Road, and that the said Worcester Corporation shall be exempt from
all risk on account either of the said express agents or of the said
express matter so transported.
7th. It is further agreed that in case the Western Corporation shall
at any time make an arrangement with the New York line by way of
Hartford and New Haven, in case of competition at low prices on the
other lines, to take passengers between Springfield and Boston at less
than the regular rates, the proceeds of such fare shall be divided between
the two corporations pro rata per mile.
8th. The foregoing agreement for the division of the regular fares is
predicated on the supposition that the local fare of the Boston and Wor¬
cester Road will continue to be $1.25. If the Worcester Corporation
shall reduce its said fare below $1.25, the amount to be received by that
corporation for joint passengers shall be so reduced that the proportions
received by the respective corporations shall be the same as under the
aforesaid arrangements.
9th. In regard to the income derived from the transportation of mer¬
chandise in consideration of the extraordinary expenses represented by
the said Western Corporation to be incurred by them in hoisting and
lowering goods between the railroad and canal boats at Greenbush, and
20 RAILROAD COMMISSIONERS. [March,
\
of collecting considerable portions of the freight in small parcels at a
large number of way stations, and of other stipulations in this agree¬
ment, the Boston and Worcester Corporation agree that the expenses of
loading, unloading, clerk hire, and other depot expenses incurred in the
management of the joint business on their part of the line, shall be set
off against the like expenses, including the said extraordinary charges
incurred by the Western Corporation on their part of the line, and the
gross receipts of income shall be divided between the said corporations
in the manner specified in the next article, instead of the said expenses
of loading, unloading, &c., being made a charge on the gross receipts
before division, as has been claimed by the Boston and Worcester Cor¬
poration heretofore.
10th. In consideration of the high grades on a part of the Western
Road, and the consequent large amount of locomotive power required in
passing them, and also of the greater wear and hazard of injury to the
cars, it is further agreed that the receipts from the transportation of all
joint merchandise shall be divided between the two corporations pro rata
according to the number of miles which each parcel is transported, with
this exception, that after ascertaining the said pro rata division there
shall be deducted from the proportion of the Boston and Worcester Cor¬
poration an amouut equal to twelve cents per ton for every ton trans¬
ported to or from places west of Springfield ; and the said amount shall
be added to the pro rata proportion of the Western Road.
11th. It is agreed that either party may make special bargains for
the transportation of large parcels of freight at rates varying from the
regular rates in particular cases, on terms which they may think advan¬
tageous to the interest of the two corporations, and the division of receipts
therefrom shall be made in accordance with the terms above indicated.
12th. In consideration of the expenses incurred by the Western Cor¬
poration in supporting a ferry boat between Greenbush and Albany, the
Boston and Worcester Corporation agree to pay the Western Corpora¬
tion two thousand dollars per annum towards defraying this expense.
13th. The stipulations of this Agreement shall take effect in regu¬
lating the division of receipts from joint passengers and freight from and
after the first day of December last, and the same shall continue in force
for the period of three years from that date, and longer, unless either of
the parties thereto shall signify to the other in writing its desire to dis¬
continue the same, in which case it shall cease and terminate at the expi¬
ration of six months from the date of such notice, provided that such
notice shall not have the effect of terminating the same until the expira¬
tion of the said three years.
I860.] HOUSE—No. 211. 21
*
In witness whereof, the said Boston and Worcester Corporation, and
the said Western Railroad Corporation have executed these presents by
the signatures of their respective Presidents, this seventeenth day of
February, in the year 1816.
THE WESTERN RAILROAD CORPORATION,
By Addison Gilmore, President.
THE BOSTON AND WORCESTER CORPORATION,
By Nathan Hale, President.
Modification of an Agreement, dated February 17, 1816, between the
Boston and Worcester and Western Railroad Corporations, for doing
the joint business of the two roads, viz.:—
Article 1st. To remain without alteration.
2d. To remain without alteration.
3d. To be so altered as to read that the joint fare between Boston
and Springfield shall be reduced to $2.50, and between Boston and Albany
shall be fixed at $5, and that the Western Road may establish such joint
fare as they may judge expedient for passengers going to or from way
stations west of Connecticut River, and a higher rate than the price
between Boston and Springfield, according to distance, for passengers
going to or from way stations east of Springfield, and that the full pro¬
portion of the joint fares so established going to the Worcester Corpo¬
ration shall be $1 for the whole length of their road, and in the same
proportion, according to distance, for parts of it.
4th. To remain as it is without alteration.
5th. To be altered so as to read, the Boston and Worcester Corpo¬
ration shall pay to the Western Corporation for the use of the passenger
cars, the same rate per mile on all joint passengers as has heretofore
been paid, but the Western Company shall be permitted to find the cars.
6th. To remain without alteration.
7th. To remain as it is, with the proviso that the proportion of the
Boston and Worcester Corporation shall not in any case extend the
amount of their regular proportion, as established in the first and third
articles.
8th. This article is rendered null and void, with the understanding
that the fare between Boston and Worcester will be established at $1
when the foregoing articles take effect.
22 RAILROAD COMMISSIONERS. [March,
9th. To remain as it is, without alteration.
10th. To remain as it is, without alteration.
11th. To remain as it is, without alteration,
12th. This section is null and void, without substitute.
13th. To remain as it is, with the exception of the time of commence¬
ment, which shall read, June 1, 1849, in lieu of December 1, 1845.
The foregoing modifications are agreed to by the committees of the
two Boards of Directors, the Presidents of each corporation being chair¬
men, February 20, 1849.
THE BOSTON AND WORCESTER R. R. CORPORATION,
By Nathan Hale, President and Chairman of Committee.
Executed April 17, 1849.
THE WESTERN RAILROAD CORPORATION,
By Addison Gilmore, President,and Chairman of Committee.
Memorandum of an Agreement made by arid between the Western Rail¬
road Corporation and the Boston and Worcester Railroad Corporation,
the first day of November, A. D. 1853.
Whereas a contract existed between the parties, dated February 17,
1846, which agreement was modified by a subsequent agreement of
April 17, 1849 : And whereas this last agreement was terminated on
the last day of May, 1852, and the parties have had no settled agree¬
ment since that time for the division of joint receipts and expenses, but
have continued to do business jointly under a verbal arrangement that
the agreement which they were intending to make, should relate back to
the first day of June, 1852, (the termination of the last contract.) ' Now,
therefore, be it known that the parties hereto have agreed, as follows*
viz.:—
That the agreement of 1846 aforesaid, as modified by the said agree¬
ment of 1849, shall be continued to the first day of June, 1855, except
so far as the same may be changed and modified by the following
articles:
First. The amount to be paid for the use of passenger cars, and
baggage cars, as provided in article fifth of the agreement of 1849,
shall be established at the rate of sixteen-hundredths of a cent per pas¬
senger per mile, on all joint passengers, except such as may be carried
in the cars of the " New York and Boston line," some of the cars form¬
ing that line belonging jointly to the four companies composing said
line; passengers by said jointly owned cars are to be omitted in making
up the account for use of cars aforesaid.
I860.]
HOUSE—No. 211.
28
Second. Article sixth of the agreement of 1846, which was altered
in the contract of 1849, shall be so modified that the Western Railroad
shall find express and post office cars, (so called,) as heretofore, a reason¬
able price for the use of which over the Boston and Worcester Railroad
shall be paid for by the Boston and Worcester Company, and said com¬
pany may charge and receive from Thompson & Co.'s express a reason¬
able compensation, to be charged by them to Thompson & Co. from and
after the first day of January last: provided, Boston and Worcester
Company assume the same risk on their road for said express and
messenger therewith which the Western Railroad Company assume on
theirs for the same.
Third. The ninth and tenth articles of the contract of 1846, and
continued without alteration in the contract of 1849, shall be expunged,
and instead thereof the following rule of division shall be substituted,
viz.:—The joint receipts for the transportation of freight shall be divided
between the respective corporations, according to the distance carried,
without allowance to either company for depot charges.
Fourth. The Western Railroad Corporation shall find all freight cars
for the joint business, for which the Boston and Worcester Company
shall pay the Western three-tenths of one cent per ton per mile
for transportation of the said joint freight over the road of the Boston
and Worcester Company.
Fifth. The first and third articles shall take effect from the first day
of June, 1852, inclusive, and the division of receipts shall be settled
' accordingly since that time. The second article shall take effect from
and after the first day of January, 1853; and the fourth article shall
take effect from and after the first day of December next. And this
arrangement shall continue in force until the first day of June, 1855,
and until six months' notice, in writing, be given by either party to
terminate it, after that date.
THE WESTERN RAILROAD CORPORATION,
By W. H. Swift,
Josiaii Stickney,
::f. Geo. H. Kufin,
■ ; . Commissioners.
tho's hopkins on,
AvWi.George Morey,
-v- ; ; 5 ■''
Daniel Denny,
Committee on behalf of Boston S? Worcester R. R. Corp'n.